Equine Holdings v. Auburn Woods

2021 UT App 14

THE UTAH COURT OF APPEALS

EQUINE HOLDINGS LLC,
Appellant,
v.
AUBURN WOODS LLC, DENSONOCK LLC, DANIEL SIMMONS, AND
BLUE SKY RANCH HOMEOWNERS ASSOCIATION INC.,
Appellees.

Opinion
No. 20181022-CA
Filed February 11, 2021

Fourth District Court, Heber Department
The Honorable Jennifer A. Brown
No. 160500054

Deborah L. Bulkeley, Attorney for Appellant
Francis M. Wikstrom, Zack L. Winzeler, and Alan S.
Mouritsen, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred. 1

HARRIS, Judge:

¶1 This case involves a dispute, between owners of lots in a
three-lot subdivision, regarding the size of a special use area
easement (Special Use Area) that burdens one of the lots. Equine
Holdings LLC (Equine) appeals from the district court’s ruling,
on summary judgment, that the covenants, conditions, and
restrictions (CC&Rs) that govern lots in the subdivision, as

1. Senior Judge Kate Appleby began work on this case as an
active member of the Utah Court of Appeals. She completed her
work as a senior judge sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Equine Holdings v. Auburn Woods

amended in 2006, were unambiguous, and described a Special
Use Area much smaller than Equine envisioned. Based on its
determination that the CC&Rs were unambiguous, the court
refused to consider extrinsic evidence, proffered by Equine,
which indicated that the smaller Special Use Area did not reflect
the drafters’ intent. We conclude that the CC&Rs are ambiguous,
and therefore reverse the court’s summary judgment order and
remand for further proceedings.

BACKGROUND 2

¶2 In the mid-2000s, an individual (Founder) owned (or
controlled, through entities) approximately ninety acres of
undeveloped real property, and wanted to divide that property
into a “unique three-lot rural subdivision” designed to appeal to
horse owners. In 2004, Founder named the subdivision the Blue
Sky Ranch Subdivision (Subdivision), and recorded the first set
of CC&Rs affecting the property (2004 CC&Rs). A plat map
(2004 Plat) was attached to those original CC&Rs; the map
depicted the manner in which the ninety acres were to be
divided into three large lots, and indicated that Lot 2 was to be
burdened by a “Special Use Area” easement “as defined in [the]
CC&Rs.” The Special Use Area, shown as a shaded area on the
2004 Plat, was depicted as a 320-foot-wide corridor that began at
a highway on the eastern end of the Subdivision, and terminated
on its western end in a straight north-south line; it did not
extend into the wide western portion of Lot 2. But other than on
the 2004 Plat, the 2004 CC&Rs did not use the term “Special Use

2. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Pipkin v. Acumen, 2020 UT App 111, n.1, 472
P.3d 315 (quotation simplified).

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Area.” Instead, the 2004 CC&Rs appeared to refer to the shaded
area on the 2004 Plat as a “[u]se [c]orridor,” and described the
corridor as a “perpetual non-exclusive easement” for the benefit
of Lots 1 and 3 to be used for many purposes, including a “right
to access” as well as the right to “walk, run, [or] ride horses.”

¶3 An amended plat map for the Subdivision was
independently recorded in August 2005 (2005 Plat); this new
map showed that Lot 2 was still burdened by a Special Use Area
easement, “as defined in [the] CC&Rs,” but this time the shaded
portion of the Subdivision depicted as the Special Use Area was
much larger, extending into the wide western portion of Lot 2
and terminating on its western end not in a straight line but in a
meandering line, defined by a creek. The 2005 Plat indicated that
the new Special Use Area comprised 33.96 acres. No amendment
to the CC&Rs was undertaken in connection with the 2005
amendment to the plat map.

¶4 In October 2005, soon after the 2005 Plat was recorded,
Equine entered into an agreement to lease Lots 1 and 3 from an
entity controlled by Founder, who at that time still owned or
controlled (through various entities) all three lots. Since 2005,
when it first leased Lot 1, Equine has continuously operated a
horse pavilion on that lot, from which it “offers boarding,
training, recreation and other horse related activities to its
guests,” as well as access to a trail system—located primarily on
Lot 2—for its guests to ride their horses.

¶5 In March 2006, Founder amended the plat map again
(March 2006 Plat), but this time he also amended the CC&Rs
(March 2006 CC&Rs). The March 2006 Plat again depicted a
shaded Special Use Area, “as defined in [the] CC&Rs,” and,
although the total acreage of the shaded Special Use Area was
this time reduced to 26.63 acres, that area’s western boundary
was the same as on the 2005 Plat: a meandering line defined by a
creek. In connection with this March 2006 amendment, the

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CC&Rs were modified so that, for the first time, they defined
the term “Special Use Area.” The March 2006 CC&Rs did
not include a legal description of the Special Use Area,
but instead defined it as “that certain shaded area identified
as” the Special Use Area on the March 2006 Plat. Like the
2004 CC&Rs, the March 2006 CC&Rs described the Special
Use Area as a “perpetual non-exclusive easement” for the
benefit of Lots 1 and 3, to be used for many purposes, including
“the right to access” and the right to “walk, run, [or] ride
horses.”

¶6 Also in March 2006, the majority owner and managing
member of Equine (Member) entered into a real estate purchase
contract with Founder, on behalf of herself “and/or Assigns,”
tendering an offer to purchase Lots 1 and 3. During the ensuing
negotiations and before closing, Member sought assurances from
Founder that she and Equine would have access to the Provo
River corridor, which borders the far western edge of Lot 2 but
does not abut Lot 1 or Lot 3, and is outside the Special Use Area.
To accommodate Member’s request, Founder again amended the
CC&Rs in June 2006 (June 2006 CC&Rs), and did so before
closing on the sale of Lots 1 and 3 and while he still owned or
controlled all three lots. The June 2006 CC&Rs indicated that the
“[o]wner of Lot 2” grants to the owners of Lots 1 and 3 “a
perpetual non-exclusive right of way and covenant running
with, through and across Lot 2 for the purpose of accessing the
Provo River corridor by any non-mechanical means, including
pedestrian, horseback and bicycle.” This Provo River access
easement was different from, and not to be “considered a part
of,” the Special Use Area.

¶7 The June 2006 CC&Rs did not include a new plat map,
and instead referenced the March 2006 Plat as the operative map.
But although they did not purport to change the plat map itself,
the June 2006 CC&Rs offered a new definition of the Special Use
Area, this time utilizing a metes-and-bounds legal description. In

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the June 2006 CC&Rs, the Special Use Area was described as a
“perpetual non-exclusive use and access easement” for the
benefit of Lots 1 and 3, to be used for “recreation, or any other
legal use.” And most significantly for present purposes, the June
2006 CC&Rs described the Special Use Area as “a portion of that
shaded area” (emphasis added) on the March 2006 Plat that is
“identified as” the Special Use Area, “which portion is legally
described as follows:”

An access road being three hundred and twenty
(320) feet wide, BEGINNING at a point South
66°16’38” West 1943.76 feet from the Northeast
quarter corner of Section 19, Township 3 South,
Range 5 East, Salt Lake Base & Meridian; thence
South 62°28’44” West 323.253 feet, thence North
55°44’31” East 1203.403 feet; thence North
89°19’54” West 447.286 feet; thence South 0° West
320 feet; thence South 89.19’54” [sic] East 346.969
[feet]; thence South 55°44’31” East 1298.26 feet;
thence North 62°28’44” East 514.69 feet; thence
Noth [sic] 27°31’16” West 320 feet to POINT OF
BEGINNING.

Unbeknownst at the time to either Founder or Member, this legal
description contains several errors, both major and minor. On
the minor end of the spectrum, the description contains two
errors in its fifth call (a decimal point instead of a degree symbol
in the directional call, and the omission of the word “feet” after
the distance call) and a typographical error in the eighth call
(“Noth” instead of “North”).

¶8 But in addition to these relatively minor errors, the
description contains three other mistakes that are more
significant. Specifically, the legal description: (1) uses as its
starting reference “the Northeast quarter corner” of a section, a
term the parties here agree is meaningless in the Public Land

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Survey System; (2) states that the point of beginning is “a
point South 66°16’38” West 1943.76 feet” from the
aforementioned “Northeast quarter corner,” a direction and
distance that the parties agree is materially erroneous,
because the true starting point was apparently meant to be “a
point South 66°49’59” West, 1933.88 feet, from the Northeast
corner”; and (3) uses the word “East” in its second directional
call (“North 55°44’31” East 1203.403 feet”) when—according to
the parties—it was meant to say “West.” Because of these errors,
the legal description—when mapped according to its terms—
depicts a non-existent parcel of property situated almost
completely outside of the Subdivision, with boundaries that do
not close.

¶9 Just days after the June 2006 CC&Rs were recorded,
Member closed on the purchase of Lot 3, and Equine closed
on the purchase of Lot 1. Over the next few years, Member,
Equine, and Founder occupied their respective lots in relative
peace. All parties appeared to share the understanding that the
Special Use Area extended to the creek running through the
wide western portion of Lot 2, and that Member and Equine (as
the owners of Lots 1 and 3), as well as their invitees, had the
right to use that area for recreational pursuits, including
horseback riding. The Special Use Area—including specifically
the part of it located in the wide western portion of Lot 2—
contained many trails for walking and horseback riding, and
Equine and Founder shared in both the cost and effort of
maintaining those trails.

¶10 In 2012, Founder sold Lot 2 to Daniel Simmons and his
wife, who were and are the owners and members of Auburn
Woods LLC; Lot 2 was later conveyed to Auburn Woods. In
2014, Densonock LLC—another entity controlled by the
Simmonses—acquired Lot 3. Thus, since 2014, Lots 2 and 3 have
been controlled by the Simmons Parties (a term herein used to
refer collectively to Auburn Woods, Densonock, and Daniel

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Simmons 3), and Lot 1 remains owned by Equine. Through 2016,
Equine and the Simmons Parties occupied their respective lots in
relative harmony, with Equine continuing to use, and share in
the maintenance of, the entire Special Use Area as depicted on
the March 2006 Plat, all the way to the creek on the west.

¶11 In 2016, after a survey of the Subdivision was conducted,
the Simmons Parties took the position—apparently for the first
time—that the western boundary of the Special Use Area did not
extend all the way to the creek and that, instead, the Special Use
Area looked something like the use corridor depicted on the
2004 Plat. Based on this understanding, the Simmons Parties
informed Equine that Equine and its guests were no longer
permitted to use the western portion—where most of the trails
were located—of what it had previously considered the Special
Use Area. Attached to this opinion as Appendix A is a
comparative depiction of the Special Use Area as shown on the
March 2006 Plat—the entirety of which Equine contends is the
actual Special Use Area as intended by the drafters—and the
smaller Special Use Area envisioned by the Simmons Parties.

¶12 Soon thereafter, Equine filed the instant lawsuit against
the Simmons Parties, asserting claims for quiet title, declaratory
judgment, reformation of the June 2006 CC&Rs, and injunctive
relief. The Simmons Parties answered and filed counterclaims
for quiet title, trespass, and declaratory and injunctive relief.
Early in the litigation, the Simmons Parties moved for summary
judgment on their quiet title and declaratory judgment
counterclaims, asking for an order declaring that, under the June
2006 CC&Rs, the Special Use Area became a use corridor and
did not include the disputed western portion. The district court
issued an order denying this motion without prejudice, finding

3. Daniel Simmons’s wife is not a party to this case, and therefore
we do not include her in the collective term.

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that a “document can . . . be ambiguous if it does not accurately
describe the property at issue, as is the case here,” and
concluding that further discovery was needed.

¶13 After discovery, the Simmons Parties filed a renewed
motion for summary judgment on their counterclaims for quiet
title and declaratory relief, again seeking an order declaring that
the Special Use Area did not include the disputed western
portion, and asserting that the description of the Special Use
Area in the June 2006 CC&Rs “is not ambiguous because its
plain terms are susceptible of only one reasonable
interpretation.” In support of this argument, the Simmons
Parties compared the boundaries of their claimed Special Use
Area with the boundaries of Equine’s claimed Special Use
Area—neither of which matched the text of the legal description
found in the June 2006 CC&Rs—and found that the two sides’
shapes were identical over the eastern portion, and diverged
only with regard to whether the Special Use Area contained the
disputed western portion. Utilizing the assistance of an expert
surveyor, the Simmons Parties pointed out that one of the calls
in the legal description of the Special Use Area—“thence South
0° West 320 feet”—appeared to represent a north-south line that
would fit with their claimed shape. And in addition to seeking
summary judgment on their counterclaims for quiet title and
declaratory relief, the Simmons Parties also sought summary
judgment on Equine’s reformation claim, asserting that it was
barred by the applicable statute of limitations.

¶14 Equine opposed the Simmons Parties’ motions, and also
filed a motion seeking summary judgment in its favor on its own
claims for quiet title and declaratory judgment. In connection
with its motion, Equine sought an order declaring that the
Special Use Area included the disputed western portion. In
opposing the Simmons Parties’ motions, Equine made two
arguments. First, it asserted that the Special Use Area easement
was created by plat and could be amended only by subsequent

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plat, and that therefore the June 2006 CC&Rs could not alter the
boundaries as a matter of law. Second, Equine asserted that the
text of the June 2006 CC&Rs was ambiguous and that, in order to
resolve the ambiguity, the court should consider extrinsic
evidence of the drafters’ intent. To support this position, Equine
submitted sworn affidavits from Founder and Member, both
averring that it was their intention, when the June 2006 CC&Rs
were drafted, that the Special Use Area was to include the
disputed western portion. According to Founder and Member,
during their 2006 negotiations, they did not intend to change the
boundaries of the Special Use Area, and intended that the
boundaries stay the same as those depicted on the March 2006
Plat. Equine also pointed out that the legal description of the
Special Use Area in the June 2006 CC&Rs contained several
errors, as discussed supra ¶¶ 7–8, and set forth boundaries that
failed to close. In the alternative, Equine asked the district court,
in light of the extrinsic evidence it had submitted, to reform the
June 2006 CC&Rs’ description of the Special Use Area to
conform to what the drafters intended.

¶15 After full briefing and oral argument, the district court
granted the Simmons Parties’ renewed motion for summary
judgment on their counterclaims for quiet title and declaratory
relief, and denied Equine’s motion. The court concluded that the
description of the Special Use Area found in the June 2006
CC&Rs was “not ambiguous because there is only one
reasonable interpretation of the language”: the one that
comported with the Simmons Parties’ understanding. Because it
determined that the June 2006 CC&Rs were unambiguous, the
court did not consider the extrinsic evidence Equine submitted.
The court concluded that the unambiguous June 2006 CC&Rs
establish “as a matter of law that the western boundary [of the
Special Use Area] is a 320-foot north-south line connecting the
admitted boundary lines.” And given its ruling regarding
interpretation of the June 2006 CC&Rs, the court declared
“moot” the Simmons Parties’ summary judgment motion on

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Equine’s reformation claim. Later, upon request from the
Simmons Parties, the court entered an order, pursuant to rule
54(b) of the Utah Rules of Civil Procedure, certifying its
summary judgment order as a final order.

ISSUE AND STANDARD OF REVIEW

¶16 Equine now appeals from the district court’s summary
judgment order. Summary judgment is appropriate only “if the
moving party shows that there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a). In determining whether a
genuine issue of material fact exists, we ask “whether reasonable
jurors, properly instructed, would be able to come to only one
conclusion, or if they might come to different conclusions,
thereby making summary judgment inappropriate.” Heslop v.
Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314
(quotation simplified). “We review a [district] court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” Heartwood Home Health & Hospice LLC v. Huber, 2020 UT
App 13, ¶ 11, 459 P.3d 1060 (quotation simplified).

ANALYSIS

¶17 In challenging the district court’s summary judgment
order, Equine makes two arguments. First, it asserts that the
Special Use Area easement was created by plat, and claims that,
pursuant to certain statutes and county ordinances, such an
easement can be modified only by amending that plat, and
cannot be modified by amending the CC&Rs alone. Equine thus
takes issue with the district court’s determination “that it was
not necessary to amend the plat in order to modify the extent of
the easement” over the Special Use Area. Second, Equine asserts

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that the court “erred in ruling that the legal description” of the
Special Use Area in the June 2006 CC&Rs “was unambiguous
and then reforming it without considering extrinsic evidence as
to the parties’ intent.” We discuss each of Equine’s arguments, in
turn, rejecting the first argument but finding merit in the second.

I.

¶18 To be legally binding, an express easement must “be
granted or declared by a writing” which both (1) “satisfies the
statute of frauds,” Evans v. Board of County Comm'rs, 2004 UT
App 256, ¶ 9, 97 P.3d 697 (quotation simplified), and (2)
indicates the parties’ mutual assent “to be bound by its terms,”
id. ¶ 12 n.5 (quotation simplified). Aside from these basic
principles, “there are no specific requirements for the creation of
an express easement.” See Potter v. Chadaz, 1999 UT App 95, ¶ 9,
977 P.2d 533; accord Hart v. Schimmelpfennig, 2009 UT App 27U,
para. 3.

¶19 After an express easement is created by contract or other
instrument, it may be modified by subsequent agreement of the
same parties. Such modification can occur in several ways,
including through methods provided in the original granting
document or through other actions by one or both parties. See
Restatement (Third) of Prop.: Servitudes § 7.1 (Am. Law Inst.
2000) (noting that a “servitude may be modified or terminated
by agreement of the parties, by other methods spelled out in the
document that creates the servitude, and by a variety of other
methods,” including abandonment, estoppel, or prescription).

¶20 Under certain circumstances, easements may also be
created by plat. See Oak Lane Homeowners Ass'n v. Griffin, 2011
UT 25, ¶¶ 11, 13, 255 P.3d 677 (holding that “an easement by plat
arises over either a public or a private road” when three
conditions are met (quotation simplified)). Citing Oak Lane,
Equine contends both (a) that the Special Use Area easement was
created by plat, and (b) that easements created by plat may be

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modified only by formally amending the plat pursuant to
statutes and county ordinances. 4 We disagree with Equine’s first
premise, and therefore need not further discuss its second.

¶21 Easements, restrictive covenants, and other servitudes
“that run with the land and encumber subdivision lots form a
contract between subdivision property owners as a whole and
individual lot owners; therefore, interpretation of the covenants
is governed by the same rules of construction as those used to
interpret contracts.” See Swenson v. Erickson, 2000 UT 16, ¶ 11,
998 P.2d 807; accord Fort Pierce Indus. Park Phases II, III & IV
Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 19, 379 P.3d 1218.
These principles apply to CC&Rs, “which are used in modern
land development and play a valuable role in establishing and
enforcing plans for the improvement and development of
properties” such as the Subdivision. See Shakespeare, 2016 UT 28,
¶ 19. An easement created in a declaration of covenants,
conditions and restrictions is thus an express easement, the
terms of which are interpreted according to traditional rules of
contractual construction.

4. Equine refers specifically to those sections of the Utah Code
governing subdivisions for the purpose of county-managed land
use regulation, see Utah Code Ann. §§ 17-27a-601 to -611
(LexisNexis 2017 & Supp. 2020), and, in particular, the sections
listing the requirements and process for amending a subdivision
plat, see id. §§ 17-27a-608 to -609. Equine also refers to county
ordinances governing plat approval and amendment processes
in the county where the Subdivision lies. See Wasatch County,
Utah, Code §§ 16.02.06, .27.12 (2020). Equine asserts that the
processes outlined in these statutes and ordinances were not
followed, and any modification to the Special Use Area that did
not go through the plat amendment processes described in these
statutes and ordinances is legally invalid.

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¶22 The Special Use Area easement in this case was created
not by plat but by written agreement—the CC&Rs—between all
the lot owners in the Subdivision. To be sure, the 2004 Plat
attached to the first set of CC&Rs did reference a “Special Use
Area,” but that map stated simply that the area was to be
“defined in [the] CC&Rs.” The original 2004 CC&Rs, as well as
each subsequent iteration, contained a definition of the
easement. The 2004 CC&Rs appeared to refer to the “Special Use
Area” depicted on the 2004 Plat as a “[u]se [c]orridor,” and
described that corridor as a “perpetual non-exclusive easement”
for the benefit of Lots 1 and 3 to be used for many purposes,
including “the right to access” and the right to “walk, run, [or]
ride horses.” Subsequent amended versions of the CC&Rs made
various changes to the definition and scope of the Special Use
Area. But each version of the CC&Rs included some definition of
the easement, and the various plat maps attached to each version
always continued to qualify the Special Use Area as being
“defined in [the] CC&Rs.” Under these circumstances, the
Special Use Area easement was created by written agreement of
all lot owners in the Subdivision, as represented by the CC&Rs,
and not by plat; the plat maps attached to the CC&Rs were
merely aids in the interpretation of the easement created by
those CC&Rs. The easement at issue in Oak Lane, by contrast,
was created only by plat; there was “no contemporaneous filing
of [CC&Rs], no formation of a homeowners association, and no
creation of a multilateral agreement for” maintenance. 2011 UT
25, ¶ 23 (quotation simplified).

¶23 As noted, express easements may be modified by
amending the operative legal instrument. See Restatement
(Third) of Prop.: Servitudes § 7.1. By repeatedly amending the
provisions of the CC&Rs that defined the Special Use Area, the
lot owners agreed to modify that express easement, and lawfully
did so each time the terms of the CC&Rs were amended; such
changes did not require a formal plat amendment. Accordingly,
we reject Equine’s first argument.

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II.

¶24 Next, Equine asserts that the district court erred by
determining that the language defining the Special Use Area
easement in the June 2006 CC&Rs, including the legal
description, was unambiguous, and that the court compounded
that error by effectively “reforming” that legal description
“without considering extrinsic evidence as to the parties’ intent.”
In addressing these arguments, we first discuss contractual
ambiguity, and find merit in Equine’s contention that the June
2006 CC&Rs were ambiguous. On that basis, we reverse the
district court’s summary judgment order and remand for further
proceedings. And in an effort to provide guidance that might be
useful on remand, we conclude with a discussion of Equine’s
contention that the court improperly “reformed” the legal
description of the Special Use Area easement.

A

¶25 In general, “unambiguous restrictive covenants,”
including CC&Rs, “should be enforced as written.” See Swenson
v. Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807. But where such
covenants are ambiguous, “the intention of the parties is
controlling.” See id.; see also Ocean 18 LLC v. Overage Refund
Specialists LLC (In re Excess Proceeds from Foreclosure of 1107
Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (stating that, if
a contract is unambiguous, “the parties’ intentions are
determined from the plain meaning of the contractual language
. . . , without resort to parol evidence,” but if a contract is
ambiguous, “parol evidence of the parties’ intentions should be
admitted” (quotation simplified)). The determination as to
whether a written instrument is ambiguous is “a question of law
to be determined by the judge,” see Ocean 18 LLC, 2020 UT App
54, ¶ 23 (quotation simplified), and is therefore the type of
question that may appropriately be determined in summary
judgment proceedings. Here, the district court determined that

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the June 2006 CC&Rs’ description of the Special Use Area
easement was “not ambiguous” and, on that basis, did not
consider the extrinsic evidence submitted by Equine. See id. ¶ 22.

¶26 The question whether a written instrument is, or is not,
ambiguous is often resolved by analyzing whether the parties to
the litigation advance interpretations of the relevant language
that are “reasonable.” See Brady v. Park, 2019 UT 16, ¶ 53, 445
P.3d 395; Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016
UT 6, ¶ 24, 367 P.3d 994. If only one side, and not the other,
advances an interpretation that can be considered reasonable,
then the language at issue is not ambiguous, because it is subject
to only one reasonable interpretation. See Brady, 2019 UT 16, ¶ 53
(explaining that a contract is not ambiguous if “the contract as a
whole unambiguously supports one interpretation over the
other”). A “reasonable interpretation” is one “that cannot be
ruled out, after considering the natural meaning of the words in
the contract provision in context of the contract as a whole, as
one the parties could have reasonably intended.” Id. ¶ 55. Thus,
“to merit consideration” as a reasonable interpretation, a
litigant’s interpretation “must be based upon the usual and
natural meaning of the language used and may not be the result
of a forced or strained construction.” See Saleh v. Farmers Ins.
Exch., 2006 UT 20, ¶ 17, 133 P.3d 428 (quotation simplified).

¶27 Courts often note that, where both of the proffered
interpretations can be considered reasonable, the language is
necessarily ambiguous. See, e.g., Ocean 18 LLC, 2020 UT App 54,
¶ 23 (“Crucially, ambiguity is present only if both proffered
interpretations of the contract’s language are tenable and in
keeping with the contract’s language.” (emphasis in original)
(quotation otherwise simplified)). But the same is true where
neither proffered interpretation is “based upon the usual and
natural meaning of the language,” and where both are “the
result of a forced or strained construction.” See Saleh, 2006 UT 20,
¶ 17 (quotation simplified); accord Beckman v. Cybertary

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Franchising LLC, 2018 UT App 47, ¶ 83, 424 P.3d 1016
(determining that a contractual provision was ambiguous where
“the plain language does not obviously support either
alternative” interpretation advanced by the contracting parties,
and remanding the issue for the court “to consider extrinsic
evidence to determine its meaning”); see also Cardiello ex rel.
Estate of Dairy Consulting, Inc. v. Fike’s Dairy, Inc. (In re Dairy
Consulting, Inc.), 386 B.R. 135, 163 & n.13 (Bankr. W.D. Pa. 2008)
(stating that where “a contract clause is ambiguous because it is
susceptible to but two interpretations, both of which are frankly
unreasonable” and not in harmony with the relevant text, parol
evidence is admissible to clarify the drafters’ intentions, even if
that evidence points toward an interpretation that is not “in
consonance with a reasonable interpretation of the relevant
clause”); Inver Grove Heights Market Place, LLC v. ANC Foods III,
Inc., No. A07-1197, 2008 WL 2574482, at *3 (Minn. Ct. App. July
1, 2008) (determining that contractual language was ambiguous
where neither party’s interpretation of the language was
“functionally reasonable,” because both would “appear to
produce absurd results” which “neither party could have
intended as the fruit of an arms-length negotiation conducted
with the benefit of counsel” (quotation simplified)). Indeed, “if
uncertain meanings of terms, missing terms, or other
facial deficiencies prevent the court from determining which
of the proffered alternative interpretations the parties
intended when they entered into the contract, then the court
deems the contractual provision at issue ambiguous, and the
ambiguity must be resolved by considering extrinsic evidence
of the parties’ intent.” Brady, 2019 UT 16, ¶ 53 (quotation
simplified).

¶28 The district court properly rejected Equine’s proposed
interpretation of the relevant contractual language as
unreasonable. The June 2006 CC&Rs state that the Special Use
Area “shall mean a portion of” the shaded area depicted on the
March 2006 Plat. (Emphasis added.) Despite this language,

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Equine takes the position that the parties to the June 2006
CC&Rs intended for the Special Use Area to encompass all of the
shaded area depicted on the March 2006 Plat. Thus, under
Equine’s interpretation, the words “a portion of” must be taken
to mean “all of.” Such an interpretation is not “based upon the
usual and natural meaning of the language,” see Saleh, 2006
UT 20, ¶ 17 (quotation simplified), and the district court did
not err by determining that Equine’s interpretation was
unreasonable.

¶29 But the district court did err by deeming reasonable the
Simmons Parties’ proffered interpretation of the June 2006
CC&Rs’ description of the Special Use Area easement. Although
the Simmons Parties’ interpretation of the phrase “a portion of”
is facially reasonable, their interpretation of the legal description
of the size and shape of the Special Use Area is incompatible
with the “usual and natural meaning of the language” used in
the legal description. See id. The relevant contractual language
states that the Special Use Area’s boundaries begin “at a point
South 66°16’38” West 1943.76 feet from the Northeast quarter
corner” of a section of land. The Simmons Parties contend that
the drafting parties actually intended that the Special Use Area’s
boundaries would begin “at a point South 66°49’59” West,
1933.88 feet, from the Northeast corner” of the section. In
addition, the relevant contractual language states, in the second
directional call, that the boundary went “East”; the Simmons
Parties contend, however, that the drafters intended for that
directional call to read “West.”

¶30 Just as “a portion of” cannot linguistically be read to
mean “all of,” neither can “East” be linguistically interpreted to
mean “West,” nor can “66°16’38”” be interpreted to mean
“66°49’59”.” In assessing whether an interpretation “merit[s]
consideration” as a reasonable one, courts must compare the
proffered interpretation to the language of the contract, and if
the language cannot bear the proffered interpretation based on

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its “usual and natural meaning,” then the interpretation is not
reasonable. See id.5

¶31 The district court acknowledged these linguistic
incongruences, but dismissed them as mere “scrivener’s errors.”6
However, not all errors made by the scrivener can be resolved
through interpretive means; as discussed infra part II.B, some are
best resolved through reformation of the relevant language. See
Wolf Mountain Resorts, LC v. ASC Utah, Inc., 2011 UT App 425,
¶¶ 10–11, 268 P.3d 872 (determining, on the facts of that case,
that one party’s “allegation of scrivener’s error constitute[d] an
allegation of mutual mistake” that was most appropriately
resolved through reformation).

¶32 Certainly, some of the many errors contained in the
Special Use Area’s legal description might properly be resolved
through interpretive means, in keeping with the contractual
language as written. One can, for instance, construe the word

5. Equine’s proffered interpretation—in addition to containing
an interpretation of “portion” incompatible with that term’s
plain meaning—also suffered from problems similar to those
exhibited by the Simmons Parties’ interpretation. Equine’s
position regarding the metes-and-bounds legal description—in
which it envisioned the Special Use Area as the entire shaded
area depicted on the March 2006 Plat—was also incompatible
with the text of that description in the June 2006 CC&Rs.

6. A scrivener’s error in a legal instrument is essentially a
“typographical” error, wherein the scrivener who was assigned
to put the drafters’ intentions to paper “made a mistake, either
as to the result that he [or she] was instructed to produce, or as
to the legal effect of the words . . . used.” See Wolf Mountain
Resorts, LC v. ASC Utah, Inc., 2011 UT App 425, ¶¶ 5, 10, 268 P.3d
872; accord Haslem v. Ottosen, 689 P.2d 27, 30 (Utah 1984).

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“Noth” as “North” without doing violence to the contractual
language chosen by the parties. And one could also, without
harming the language used, infer that the parties intended to
insert the word “feet” into the fifth directional call, rather than,
say, meters or yards, because the legal description uses feet as its
unit of measurement in all of the other calls. But changing “East”
to “West,” or changing the length of a directional call, is another
matter altogether; that type of error, although perhaps the fault
of the scrivener, cannot fairly be categorized as one subject to
resolution by interpretive inference, or by analysis of the plain
meaning of the text.

¶33 Indeed, the district court resolved the matter using more
than just interpretive tools. First, the court adopted the Simmons
Parties’ suggestion that its analysis should begin not with
examination of the text of the June 2006 CC&Rs but, instead,
with a visual comparison of the two sides’ mapped visions of
what the Special Use Area should look like. As already noted,
neither side’s vision of the Special Use Area’s shape is consistent
with the text of the legal description contained in the CC&Rs.
Although we appreciate the district court’s effort to narrow the
dispute between the parties, it did so in a way that, from the
outset, unmoored its “interpretive” analysis from the
instrument’s text. Second, the Simmons Parties’ analysis,
adopted by the court, was dependent upon the assistance of
expert surveyors, who offered their opinions that the legal
description, when plotted as written, pointed to a nonexistent
parcel and failed to close, and one of whom offered an opinion
that the fourth call—“thence South 0° West 320 feet”—fit nicely
into the Simmons Parties’ view of the size of the Special Use
Area. Thus, the district court’s analysis relied on one type of
extrinsic evidence to explicate the meaning of the legal
description, even though the court purported to merely be
interpreting the language of the CC&Rs itself. And finally, as
noted, the conclusion the court reached required construing
“East” to mean “West,” and required construing “66°16’38”” to

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mean “66°49’59””—interpretations that are incompatible with
the instrument’s text.

¶34 For these reasons, the interpretation of the relevant
contractual language advanced by the Simmons Parties—just
like the interpretation advanced by Equine—is inconsistent with
the actual text of the document. Neither interpretation is
consistent with the contractual text; both interpretations do
violence to the “usual and natural meaning of the language
used” and are “the result of a forced or strained construction.”
See Saleh, 2006 UT 20, ¶ 17 (quotation simplified). We perceive no
appropriate basis upon which the district court could have
considered the Simmons Parties’ proffered interpretation to be
reasonable and consistent with the text of the June 2006 CC&Rs,
while at the same time rejecting Equine’s proffered
interpretation on the basis that it was inconsistent with
contractual text. Both proffered interpretations are, in our view,
materially inconsistent with the text of the June 2006 CC&Rs,
and therefore neither is reasonable.

¶35 Accordingly, the definition of the Special Use Area
contained in the June 2006 CC&Rs is ambiguous, and the intent
of the drafters cannot be ascertained without resort to extrinsic
evidence. The district court erred in concluding otherwise. On
this basis, we reverse the district court’s summary judgment
order, and remand the matter for further proceedings,
potentially including consideration of extrinsic evidence.

B

¶36 Although we reverse and remand for the reasons already
stated, we nevertheless deem Equine’s other contention—that
the district court’s order had the effect of improperly reforming
the June 2006 CC&Rs in the Simmons Parties’ favor—worthy of
further discussion, in the hope that such discussion might be
useful on remand. See, e.g., State v. Low, 2008 UT 58, ¶ 61, 192
P.3d 867 (although reversing on another ground and remanding

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for a new trial, nevertheless proceeding to “provid[e] guidance”
on “other issues presented on appeal that will likely arise
during retrial”). We begin by examining the distinction
between interpretation of a legal instrument and reformation
of a legal instrument, and then conclude with a limited analysis
of the application of those legal principles to the facts of this
case.

1

¶37 Our supreme court has emphasized that it is “important
to recognize” the distinction between “construction” of deeds
and other legal instruments, and “reformation” of those same
instruments. See RHN Corp. v. Veibell, 2004 UT 60, ¶ 41, 96 P.3d
935. Deed construction, including construction of CC&Rs, is an
exercise in contractual interpretation. See Swenson v. Erickson,
2000 UT 16, ¶ 11, 998 P.2d 807; see also Fort Pierce Indus. Park
Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 19,
379 P.3d 1218 (applying principles of contractual interpretation
when interpreting CC&Rs).

¶38 And given that it is an exercise in contractual
interpretation, construction of a legal instrument’s terms is by
nature a more limited exercise than reformation. See Veibell, 2004
UT 60, ¶ 41 (stating that “a court of law’s ability to construe a
deed is more limited than a court of equity’s ability to reform a
deed”). When interpreting written instruments, courts are
“limited to interpreting only the language contained in” the
instrument, striving to “determine the parties’ intent from the
plain language of the four corners of” the instrument. See id.
¶¶ 40–41 (quotation simplified). Likewise, when interpreting a
contract, a court must attempt to ascertain the meaning of the
words chosen by the parties. See 17A C.J.S. Contracts § 402 (2021)
(“Contract interpretation determines the meaning of words in a
contract.”). Thus, when engaged in an interpretation exercise,
courts must attempt to construe the words chosen by the parties,

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and may not, as part of that exercise, make alterations that
materially change the meaning of the instrument’s text.

¶39 In making that interpretive attempt, courts begin by
analyzing the language of the instrument and, if the words or
phrases in question are unambiguous, courts are to interpret the
chosen words according to their plain meaning. See Veibell, 2004
UT 60, ¶ 40; see also Mind & Motion Utah Invs., LLC v. Celtic Bank
Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (stating that “the best
indication of the parties’ intent is the ordinary meaning of the
contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC
(In re Excess Proceeds from Foreclosure of 1107 Snowberry St.), 2020
UT App 54, ¶ 22, 474 P.3d 481 (“Indeed, where the language
used in the contract is facially unambiguous, the parties’
intentions are determined from the plain meaning of the
contractual language, and the contract may be interpreted as a
matter of law, without resort to parol evidence.” (quotation
simplified)). But if the language the parties have chosen is
ambiguous, a court—even when undertaking to interpret rather
than reform the instrument—may consider extrinsic evidence of
the parties’ intentions in an effort to ascertain what the parties
intended the ambiguous language to mean. See Veibell, 2004 UT
60, ¶ 40 (“Extrinsic evidence is admissible to illuminate the
intent of the parties if the terms of a deed are ambiguous.”
(quotation simplified)).

¶40 Reformation of a deed, contract, or other instrument is a
different exercise altogether. In a reformation proceeding, the
court is asked to do more than just interpret the words chosen by
the parties; instead, acting as “a court of equity,” it “has the
authority to add new terms to [an instrument] or alter the
original language of [the instrument] to conform to the parties’
intent.” See id. ¶ 41. Reformation is appropriate when “the
dispute [does] not involve differences as to how the [instrument]
should be interpreted,” but rather is “premised on the[]
argument that the parties made a mutual mistake” in setting

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forth their intentions. See Seamons v. Wiser, 2020 UT App 33, ¶ 17,
462 P.3d 387; see also Bowen v. Bowen, 2011 UT App 352, ¶ 14, 264
P.3d 233 (noting that reformation is generally available when
there is either “mutual mistake of the parties” or “ignorance or
mistake of the complaining party . . . induced by the fraud or
inequitable conduct of the other remaining parties”).
“Reformation is not available to rewrite a [document] to include
terms never contemplated by the parties,” see Veibell, 2004 UT 60,
¶ 38 (quotation simplified), and may be applied “only if the
[c]ourt finds that a mutual mistake was made by the grantor and
grantee of the deed, and that the written deed did not conform
to their intent,” Williams v. Oldroyd, 581 P.2d 561, 563 (Utah
1978). Once mutual mistake is shown, extrinsic evidence is
admissible to prove the intent of the original parties, even if the
mistakenly included language is itself unambiguous. Seamons,
2020 UT App 33, ¶ 18 (stating that “an ambiguity is not
necessary to admission of parol evidence where reformation is
sought on the ground of mutual mistake or fraud” (quotation
simplified)). 7 Even in a reformation exercise, however, the usual
rules of contractual interpretation—in addition to consideration
of extrinsic evidence—may still “assist in ascertaining the intent
of the parties.” See Veibell, 2004 UT 60, ¶ 42.

7. The district court determined that the Simmons Parties’
motion to dismiss Equine’s reformation claim—and, by
implication, that reformation claim itself—was rendered moot
by the court’s determination that the June 2006 CC&Rs could be
unambiguously interpreted in the Simmons Parties’ favor. But
because the absence of ambiguity does not defeat a reformation
claim, see Seamons v. Wiser, 2020 UT App 33, ¶¶ 17–18, 462 P.3d
387, we wonder about the propriety of the court’s mootness
determination. In any event, however, given our decision here,
the court may need to address the Simmons Parties’ motion on
remand, should they choose to renew it.

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¶41 “Some property disputes may be resolved through either
a construction or a reformation analysis,” but courts must take
care to keep the two exercises distinct. See id. ¶ 41. Indeed, “a
court may not, in effect, reform [an instrument] when attempting
to interpret or construe it.” Id. (quotation simplified). An
illustration may help to illuminate the distinction between
interpretation and reformation: a court engaging in an
interpretive exercise may consider whether the drafters of a
document, by choosing the word “north,” meant, say, true north
or magnetic north, since either meaning could be a reasonable
interpretation of the word “north”; but courts engaging in the
construction of contracts may not interpret the word “north” to
mean “south,” because the word “north,” on its face, cannot be
construed to mean something that is the polar opposite of the
plain text. In order to change “north” to “south,” reformation of
the instrument is required, and would be entirely appropriate—
even though “north” is not necessarily ambiguous—upon a
showing that the parties made a mutual mistake by using the
word “north” instead of “south,” and actually intended to use
the word “south.”

2

¶42 In this case, Equine included a reformation claim in its
complaint, alleging that the drafters of the June 2006 CC&Rs had
made a mistake, and had intended for the boundaries of the
Special Use Area to encompass all of the shaded area on the 2006
Plat. The Simmons Parties, in their counterclaim, did not seek
reformation of the June 2006 CC&Rs; in addition, they moved to
dismiss Equine’s reformation claim on summary judgment,
asserting that the claim was barred by the applicable statute of
limitations. The district court denied that motion as moot, after
determining that the Simmons Parties advanced the only
reasonable interpretation of the June 2006 CC&Rs. Because
neither party appealed the court’s ruling that the Simmons
Parties’ summary judgment motion on Equine’s reformation

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claim was moot in light of its other rulings, we express no
opinion about whether Equine’s reformation claim is, or is not,
time-barred. 8 Nor do we opine about what the proper course of
action would be in a situation in which reformation of a contract
is necessary—one way or the other—but where a party may be
barred on statute of limitations grounds from seeking
reformation. But now that we have reversed the district court’s
summary judgment order, it may become necessary, on remand,
for the court to consider the extent to which reformation is
available to the parties in this case.

¶43 In our view, Equine persuasively argues on appeal that
the district court’s summary judgment order effectively
reformed the CC&Rs in favor of the Simmons Parties, despite the
fact that the court professed to merely be interpreting the
CC&Rs, and despite the fact that the Simmons Parties did not

8. Under Utah law, an action to reform an instrument based on
fraud or mistake must be brought within three years of “the
discovery by the aggrieved party of the facts constituting the
fraud or mistake.” Utah Code Ann. § 78B-2-305(3) (LexisNexis
2018). And we have previously clarified that knowledge that the
instrument was recorded does not necessarily constitute “‘notice
[or discovery] of the facts constituting the fraud’ or mistake.” See
Wells Fargo Bank, NA v. Noerring, 2018 UT App 232, ¶ 24, 438
P.3d 90 (quoting Smith v. Edwards, 17 P.2d 264, 270 (Utah 1932)).
Assessment of when the aggrieved party “discovered or
reasonably should have discovered” the facts constituting the
fraud or mistake “is often a difficult and intensely fact-
dependent inquiry.” Id. ¶ 20 (quotation simplified). On remand,
if the Simmons Parties renew their motion, the court will need to
engage in such an inquiry to determine when Equine discovered
or reasonably should have discovered the mistakes in the metes-
and-bounds description and, based on that determination, assess
whether its reformation claim was timely filed.

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themselves seek reformation. As Equine points out, the relief
afforded by the district court necessarily included the following
material changes to the legal description: (1) excising the word
“quarter” from the description of the point of beginning; (2)
changing “South 66°16’38” West 1943.76” to “South 66°49’59”
West, 1933.88” in the description of the point of beginning; and
(3) changing “East” to “West” in the second directional call.
These changes are more than interpretive; they involve actually
changing the text of the relevant contractual language, and are
not compatible with the existing language of the June 2006
CC&Rs. Indeed, these changes materially alter the meaning of
the June 2006 CC&Rs. The 66°16’38” directional call cannot be
interpreted to mean 66°49’59”. A distance of 1943.76 feet cannot
be interpreted to mean 1933.88 feet. And “East” cannot be
interpreted to mean “West.” These changes require reformation.
Our supreme court has noted that “a court may not reform a
deed under the guise of deed construction,” see Veibell, 2004 UT
60, ¶ 42, and that appears to be the effect of the district court’s
summary judgment order here. Furthermore, reformative
changes cannot be made to a legal instrument without
considering extrinsic evidence from both parties, because “the
intention of the parties is controlling” and, in cases involving
fraud or mistake, the intent of the parties cannot be divined from
the text alone. See id. ¶¶ 36, 38 (quotation simplified).

¶44 In this case, the positions taken by both sides appear to
lend themselves to reformation claims based on mutual mistake.
Equine claims, based on sworn affidavits from Founder and
Member, that the drafters of the June 2006 CC&Rs did not intend
to shrink the Special Use Area, and that a mistake was made in
the drafting of those CC&Rs. See id. ¶¶ 36, 37 (stating that
“reformation of a deed is appropriate where the terms of the
written instrument are mistaken in that they do not show the
true intent of the agreement between the parties,” and that
mutual mistake generally encompasses any “error in reducing
the concurring intentions of the parties to writing” (quotation

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simplified)). And the Simmons Parties point to a botched metes-
and-bounds legal description, a situation that our supreme court
has previously held to be a proper candidate for reformative
relief. See, e.g., Jensen v. Manila Corp. of the Church of Jesus Christ of
Latter-day Saints, 565 P.2d 63, 64 (Utah 1977) (holding that, even
“if the description of the property is definite and certain,” “parol
evidence is admissible in an action for reformation[] to show the
writing did not conform to the intent of the parties”); Losee v.
Jones, 235 P.2d 132, 137 (Utah 1951) (stating that “the intention of
the parties is the controlling consideration” in reforming a deed
where the calls of a metes-and-bounds description “fail[ed] to
close”); see also Seamons, 2020 UT App 33, ¶¶ 16–18 (holding that
extrinsic evidence was admissible in a deed reformation action
to show that a legal description of property contained a mutual
mistake); Wolf Mountain Resorts, LC v. ASC Utah, Inc., 2011 UT
App 425, ¶ 11, 268 P.3d 872 (stating that an “allegation of
scrivener’s error constitutes an allegation of mutual mistake by
the parties as to the language of the” contract). 9

9. The Simmons Parties suggest that we should not look to Wolf
Mountain Resorts for assistance, but instead urge us to consider
the case of Burningham v. Westgate Resorts, Ltd., 2013 UT App 244,
317 P.3d 445. That case, however, is no help to the Simmons
Parties. In Burningham, the parties’ agreement contained a
scrivener’s error: the parties apparently intended to write
“Section 38.1,” but instead the agreement stated “Section 39.1.”
Id. ¶ 17. Due to the existence of the error, the district court
appeared willing to consider extrinsic evidence, but because no
party presented any such evidence that the drafters intended to
refer to any section other than 38.1, the district court resolved the
matter summarily, and this court affirmed. Id. ¶¶ 17–19. Thus,
Burningham does not support any argument that extrinsic
evidence is not admissible to resolve scrivener’s errors, but
rather stands for the proposition that a party cannot make a
(continued…)

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¶45 Our reversal of the district court’s summary judgment
order means that the Simmons Parties’ motion for summary
judgment on Equine’s reformation claim is no longer moot (if
indeed it was ever moot, see supra note 7). On remand, the court
will need to reconsider that motion, and address whether
Equine—or the Simmons Parties, for that matter—may properly
seek reformation, a remedy that seems well suited for
addressing the problems presented by the June 2006 CC&Rs. If
reformation is unavailable, the court will also need to consider
whether it can afford either party the type of relief they seek,
given our supreme court’s mandate that “a court may not, in
effect, reform a deed when attempting to interpret or construe
it.” See Veibell, 2004 UT 60, ¶ 41 (quotation simplified).

CONCLUSION

¶46 The district court correctly determined that the owners of
the lots in the Subdivision could alter the description of the
Special Use Area by amending the CC&Rs, and did not need to
undertake a formal amendment of the Subdivision plat.
However, the district court erred by determining that the
Simmons Parties’ proffered interpretation of the June 2006
CC&Rs’ description of the Special Use Area was reasonable,
erred by determining that the description was clear and
unambiguous, and erred by declining to consider extrinsic
evidence regarding the drafters’ intent. We therefore reverse the
district court’s summary judgment order, and remand for
further proceedings consistent with this opinion.

(…continued)
prima facie showing of mutual mistake without offering
extrinsic evidence of the drafters’ intent. Here, Equine did offer
such evidence; it was simply not considered by the district court.

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APPENDIX A
March 2006 Subdivision Plat Map (Showing Special Use Area Boundaries Advocated by Equine)

Special Use Area Boundaries Advocated by Simmons Parties (with Asserted Western Border in Bold)